Someone Claiming To Be Flappy Bird's Creator Just Sent A Ridiculous Cease & Desist To Moderator Of Flappy Birds Subreddit
from the mandatory-Flappy-Birds-post-delivered,-allowing-Techdirt-to-stay-on-the-Internet dept
For awhile it looked as though Techdirt might be one of the last holdouts to offer an opinion on the short-lived but incredibly intense Flappy Bird craze. Or at the very least, it looked as though we might avoid using the game's name in the headline. But those days are behind us now because someone (possibly the creator) has managed to steer the phenomenon right into our wheelhouse with a thoroughly misguided and inaccurate copyright-related legal threat.
For the three of you (Hi, Grandma!) who have managed to avoid the complete saturation of Flappy Bird into every media outlet, here's a very brief recap.
Vietnam-based indie developer Dong Nguyen had created several basic mobile games, but nothing really caught on until Flappy Bird. The infuriating game tasks users with steering a bird through some Mario-esque pipes in search of points. It's a tough game -- hard, unfair and not very rewarding. But it is (or was, more on that in a bit) extremely popular. A score that nudges into the hundreds column is considered godlike.
After Flappy Bird blew up, Nguyen reportedly was pulling in $50,000 a day from ad revenue. At that point, the creator began to hate his creation and, quite unexpectedly, killed it off rather than endure everything that comes with completely unexpected fame (including, but not limited to, hateful comments from frustrated gamers, an increasing amount of people who knew he had loads of money and were looking for a cut and the pressure to somehow top himself). So, on Feb. 9th, Nguyen deleted his game from iTunes and Google Play.
This screaming void was soon filled by people hawking used phones with installed (and suddenly "rare") copies of Flappy Bird on eBay and about a million clones and reskins, the latter resulting in Google and Apple now promptly rejecting anything Flappy Bird-esque that's submitted to its app stores.
Now, out of the blue, the redditor who started the r/FlappyBird subreddit has received a C&D from "Dong_Nguyen_Legal." Here's the notice in full (line breaks inserted to break wall of text]:
CEASE AND DESIST DEMANDNow, before we get to the speculation as to who is actually behind this, let's deal with the C&D itself. Nguyen claims this redditor has unlawfully copied Flappy Bird's "graphics and name." The subreddit does indeed use the iconic "Flappy Bird" and is named after the game, but those would be more actionable as trademarks than copyright. Here's the offending banner from the r/FlappyBird subreddit. (The cached version shows the same graphics and text.)
In accordance with Title 17 of the United States Code and International Copyright Standards February 14, 2014 Re: Flappy Bird To the owner of Reddit, /r/FlappyBird :
This communication details a cease and desist notice by Dong Nguyen. If you are represented by legal counsel, please direct this letter to your attorney immediately and have your attorney notify me of such representation. I am writing to notify you that your unlawful copying of my Graphics and Names: 'Flappy Bird' infringes upon my exclusive copyrights. Accordingly, you are hereby directed to CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT. I am the owner of a copyright in various aspects of Flappy Bird.
Under United States copyright law, my copyrights have been in effect since the date that Flappy Bird was created. All copyrightable aspects of Flappy Bird are copyrighted under United States copyright law. It has come to my attention that you have been copying Flappy Bird. I have copies of your unlawful copies to preserve as evidence. Your actions constitute copyright infringement in violation of United States's copyright laws. Under 17 U.S.C. 504###, the consequences of copyright infringement include statutory damages of up to $30,000 per work, and damages of up to $150,000 per work for willful infringement.
If you continue to engage in copyright infringement after receiving this letter, your actions will be evidence of "willful infringement." Based upon the foregoing, I demand that you immediately (i) cease and desist your unlawful duplication of Flappy Bird and (ii) promptly communicate your assurance within ten (10) days that you will cease and desist from further infringement of my copyrighted works. If you do not comply with this cease and desist demand within this time period, I am entitled to use your failure to comply as evidence of "willful infringement" and seek monetary damages and equitable relief for your copyright infringement. In the event you fail to meet this demand, please be advised that I will contemplate pursuing all available legal remedies, including seeking monetary damages, injunctive relief, and an order that you pay court costs and attorney's fees. Your liability and exposure under such legal action could be considerable.
Before taking these steps, however, I wish to give you one opportunity to discontinue your illegal conduct by complying with this demand within ten (10) days. Accordingly, please reply to this email within ten (10) days with your acceptance of the attached Agreement. The foregoing is without waiver of any and all rights of myself, all of which are expressly reserved herein. If you or your attorney have any questions, please contact me directly. Sincerely, Dong Nguyen
This would appear to be nothing more than use of the name (and bird pic) in the nominative sense, something that's generally considered to be fair use. On the copyright front, there's no registered copyright for Flappy Bird in the US, which would make it difficult for Nguyen to pursue infringement. Nguyen specifically cites US copyright law, which wouldn't apply if there's no registration in the states (specifically, the cited statutory damages). Without a valid registered copyright, Nguyen would have to prove actual damages which would be pretty tough to do considering the app was voluntarily deleted four days before the subreddit came into existence.
If Nguyen's trying to go the trademark route, he runs into a similar problem. There are currently seven pending applications for "Flappy Bird," none of which appear to be filed by him or on his behalf. (The TESS link will expire, so here's a screenshot of the search results.) So there's really no claim there, either.
Beyond those two issues, there's also a problem with the next several accusations, which all seem to indicate Nguyen is chasing unauthorized duplication of his game, something that's clearly not happening in this subreddit.
There's always the possibility that the redditor is cloning Flappy Bird, but if so, this C&D was sent to the wrong place and cites the wrong entity. The C&D was sent directly to the moderator/creator of r/FlappyBird and specifically mentions that subreddit more than once. It could be that Nguyen (or whoever's representing him) has mistaken the gathered Flappy Bird screenshots, fan art and links to various clones as actual duplications of his program, but most likely this isn't the case. Nguyen's a long-time app developer. It would be hard to believe he can't differentiate between a screenshot and an infringing copy.
So that takes us to the question of who's actually behind this C&D.
Dong Nguyen actually seems to be the least likely person to have sent this out. He's already yanked the game (for being "too addictive") and has been working hard to distance himself from its viral success. His Twitter account has been silent since Feb. 8th, save for a single, short response to suicide rumors.
@mdtauk haha— Dong Nguyen (@dongatory) February 13, 2014
Now, there could be someone (badly) representing Nguyen who is attempting to pry some cash out of unsuspecting Flappy Bird fans. Like anyone else who suddenly comes into money, Nguyen has probably found himself surrounded with people offering to handle his finances and tackle his legal issues. These sorts of people will probably fare no better than the uncle-of-a-friend who talks himself into a job as a financial advisor for any NBA/NFL phenom -- the kind that only prove how fast they can run through someone else's money. This theory would explain the complete cluelessness of the C&D.
The third theory is that this is just a (slightly advanced) form of trolling. Someone's just tossing out wholly implausible C&Ds and enjoying the small ripples that result. The internet's a big place, and Dong_Nguyen_Legal could literally be anybody… except (most likely) for Dong Nguyen himself.
As it stands now, the recipient of this notice has 10 days (from Feb. 15th) to comply without facing any further legal trouble. (We have to read the notice as straight to read the previous sentence without laughing.) From the looks of the subreddit, nothing has changed. Nor should it. The infringement level here (trademark or copyright) is so low as to be unnoticeable. If this is serious, and some misguided legal rep is preparing to drag Dong Nguyen into an almost unwinnable legal battle, he or she has picked the wrong fight and very certainly the wrong opponent.